Riley v. Riley

Hornby, J., delivered the opinion of the Court. In this case where there was ample evidence of opportunity to commit adultery but a dearth of evidence of an adulterous disposition, the primary question on appeal is whether the chancellor erred in awarding custody of the minor children of the parties to the mother rather than to the father who was granted a divorce on the ground of desertion. Ronald Riley and Constance Riley were married in March of 1958. Two children, a girl now aged five and a boy now aged three, were born to them, but the marriage for the most part had been a stormy one.

In December of 1962, the wife left the home of his parents, where the parties had been living, and, with the consent of the husband, took the children with her. Later, in July of 1964, when the mother permitted the girl to visit the father for a week, he refused to surrender the child when the mother sought her return. As a consequence, other disputes arose with respect to the custodial and visitation rights of the parents. Eventually, the wife filed a bill for an absolute divorce on the grounds of constructive desertion and adultery.

And the husband filed a cross-bill for an absolute divorce on the ground of actual desertion and adultery. Both denied the allegations of the other and both sought custody of the children. As of that time, the husband still had custody of the girl and the wife had custody of the boy. After the separation the mother went to work.

She would leave the children with a baby sitter in the morning and pick them up on the way home from work. There was nothing to indicate any neglect or a lacle of maternal interest in and affection for the children. Instead, the husband based his claim for custody of the children on the ground that the mother had committed adultery and was therefore morally unfit to rear them. Although evidence relating to the alleged illicit relationships of the wife with two men was produced below, the husband, on appeal, relies on the evidence concerning only one.

As to him, it is conceded that he was unmarried and that the wife ³⁶⁵ shared a “double house” with him for about a year. The house, which was owned by the man’s mother, had only one entrance and a common stairway from the first to the second floor where there was a bathroom and four bedrooms. According to the wife, the doors between the two bedrooms occupied by her and the child on her side of the house and the bedroom occupied by the man on his side of the house were always kept locked, and the man used the bathroom on the second floor while she and the child used the bathroom on the first floor. There was no evidence to the contrary.

On one occasion the husband had seen the man painting a room in the apartment occupied by the wife. On another occasion he had seen his wife and the man riding in an automobile in the daytime near the home of her mother. On neither occasion did he see any display of affection by one toward the other. There was other evidence that the wife and the man had been seen by a person other than the husband coming out of a food store in a shopping center—he was carrying a bag of groceries and she was carrying the child.

The wife admitted going to the drug store in the shopping center with the man but denied shopping for groceries with him. The wife also denied committing adultery with either of the two men referred to or having any perverse interest in either of them. And the husband admitted that he had never seen his wife doing anything wrong. The wife’s bill, alleging desertion and adultery, was dismissed for lack of sufficient